Every statement made by the ACL flyer is valid and defensible with reference to the new Victorian Change or Suppression (Conversion) Practices Prohibition Act 2021 (VIC).

Statements made in the flyer

The ACL Flyer makes five statements about the effect of the Act:

  1. Parents could be jailed for up to 10 years under the Act.

  2. The law has “made sure” that you are prohibited from telling your child to wait until they are older from pursuing transgender therapies if they tell you they are transgender;

  3. Professional therapists are prohibited from dissuading a child from gender transitioning;

  4. You could be criminally prosecuted for seeking an opinion interstate;

  5. Your neighbour can report you for having the “wrong” conversation with your kids and the Government has the power to receive, investigate and prosecute these complaints.

Statement No. 1: “Parents Like You could be jailed for 10 years under new Victorian Law”

Sections ten through to fourteen are the Act’s criminal provisions. These offences apply to any person, anywhere – not just health professionals or those in health and wellbeing vocations.

The Act makes illegal any “change or suppression practice” that causes serious injury – see section 10(1).

The criminal provisions apply to any conversation, including between parent and child, because the conversation could constitute conduct that would qualify as a “change or suppression practice” under section 5(1).

Section 5 defines a change or suppression practice as:

5 Meaning of change or suppression practice

(1) In this Act, a change or suppression practice means a practice or conduct directed towards a person, whether with or without the person’s consent –

(a) on the basis of the person’s sexual orientation or gender identity; and

(b) for the purpose of –

(i) changing or suppressing the sexual orientation or gender identity of the person; or

(ii) inducing the person to change or suppress their sexual orientation or gender identity.

Section 10 of the Act creates a criminal offence for engaging in a change or suppression practice that causes serious injury which has a maximum penalty of 10 years:

     Penalty:

  • In the case of a natural person, level 5 imprisonment (10 years maximum) or a level 5 fine (1200 penalty units maximum) or both;
  • In the case of a body corporate, 6000 penalty units maximum.

To receive the maximum penalty of 10 years imprisonment a person would have to do something that caused serious mental or physical harm that endangers life or is substantial and protracted, not just distress or anger.

A parent’s single conversation with a child would be unlikely to cause this kind of injury. If the injury caused was not serious enough to warrant the maximum penalty under section 10, it could still incur a penalty of 5 years imprisonment under section 11.

Any natural person can commit these offences, which includes any parent. If a parent engaged in a change or suppression practice and caused injury, they could go to prison for 5 to 10 years, depending on the seriousness of the injury.

Statement No. 2: “A new law (the Act) has made sure that if your child tells you they are transgender, you are prohibited from encouraging them to wait until they are older before pursuing potentially irreversible therapies. It can send you to jail.”

The Act prohibits parents from engaging in a “change or suppression practice” that suppresses their child’s purported gender identity.

A parent who encourages their child to wait until they are older before taking social, chemical or surgical steps towards a transgender identity will fall within the definition of “suppression” of that gender identity under the Act.19-0041: 210706 – ACL Conversion Therapy Flyer Advice 3

Gender identity is defined under the Act as follows:

gender identity means a person’s gender-related identity, which may or may not correspond with their designated sex at birth, and includes the personal sense of the body (whether this involves medical intervention or not) and other expressions of gender, including dress, speech, mannerisms, names and personal references.

Because of this broad definition of gender identity, a parent who gives discouraging or cautious advice to their child about refraining from dress, speech, mannerisms or identification as the opposite sex – not to mention any chemical or surgical “medical” treatments - will be suppressing that child’s gender identity.

This conduct could be a change or suppression practice that is prohibited under the Act. If a child can prove psychological harm, then a parent could be held criminally liable and sent to jail.

Statement No. 3: “Professional therapists are now prohibited from discouraging a minor from undergoing a gender transition…”

This statement specifically refers to the express inclusion of psychiatric and psychotherapy treatments in the definition of a change or suppression practice in section 5(3)(a):

(3) For the purposes of subsection (1), a practice includes, but is not limited to the following –

(a) providing a psychiatry or psychotherapy consultation, treatment or therapy, or any other similar consultation, treatment or therapy;

The Act only protects the affirmation of gender transition by medical professionals in section 5(2):

(2) For the purposes of subsection (1), a practice or conduct is not a change or suppression practice if it –

(a) is supportive of or affirms a person’s gender identity or sexual orientation including, but not limited to , a practice or conduct for the purposes of –

(i) assisting a person who is undergoing a gender transition; or…

Limited protection is given to health professionals who seek to explore the underlying causes of gender dysphoria that gender transition will not address in section 5(2)(b):

(2) For the purposes of subsection (1), a practice or conduct is not a change or suppression practice if it –

(a) is a practice or conduct of a health service provider that is, in the health service provider’s reasonable professional judgment, necessary –

(i) to provide a health service; or

(ii) to comply with the legal or professional obligations of the health service provider.

The requirement that a treatment is “necessary” is a high threshold that effectively prohibits clinical treatment that might discourage gender transition. It is near impossible for a therapist to establish that such discouragement is “necessary”.

If a professional therapist discourages or counsels a minor to wait before taking pubertyblockers this could be considered a change or suppression practice outside of the “necessary” protection and therefore prohibited by the Act under section 9.

Statement No. 4: “You could be criminally prosecuted for seeking a second opinion interstate”

Section 12 of the Act makes it an offence to take a person outside Victoria for any activity that could be considered a change or suppression practice.

12 Offence of taking a person from Victoria for a change or suppression practice

(1) A person (A) commits and offence if –

(a) A takes another person (B) from Victoria, or arranges for B to be taken from Victoria; and

(b) A intends that a change or suppression practice directed towards B will be engaged in outside Victoria (whether by A or another person); and

(c) a change or suppression practice directed towards B is engaged in outside Victoria; and

(d) the change or suppression practice causes injury to B; and

(e) A is negligent as to whether the change or suppression practice will cause injury to B.

If a parent takes a child to see a clinical psychologist in NSW who advises against a gender transition and the child at any stage considers that this advice was wrong and caused the child harm, parents could be criminally liable for obtaining that opinion.

Statement No. 5: “The Government can now receive, investigate and prosecute complaints from any person – your neighbour could dob you in for having the “wrong” conversations with your own kids.”

This Act gives extensive investigative powers to the Victorian Equal Opportunity and Human Rights Commission (the Commission) to accept complaints, investigate and prosecute offences under the Act.

The Commission can accept a report of an alleged change or suppression practice from someone affected by the practice or any other person under section 24. This includes a neighbour or a complete stranger.

The Commission has extremely broad investigative powers under the Act:

34 When investigation may be conducted

The Commission may conduct an investigation under this section into any matter relating to this act –

(a) that raises an issue that is serious in nature or indicates change or suppression practice that are systemic or persisting; and

(b) that indicates a possible contravention of this Act; and

(c) that relates to a class or group of persons; and

(d) that would advance the objects of this Act.

35 Commission to conduct investigation as it considers fit

(1) Subject to this Division, the Commission may conduct an investigation in the manner is considers fit.

(2) In conducting an investigation, the Commission is bound by principles of natural justice, unless expressly provided in this Division.

In addition to these powers the Commission can compel someone to appear before the Commission under section 37 to be questioned in connection with an investigation.

These investigative powers allow the Commission to set its own standard of investigation and give it an extremely broad ambit in what it may do and how far it can pursue people. The powers allow the Commission to do whatever it thinks fit and to investigate any matter that it considers would advance the objects of the Act.

Under section 45 the Commission can impose penalties such as compliance notices to compel a parent to stop having conversations with their children or to force parents to use a new name and new pronouns with their children. Failure by parents to obey these notices will result in them being dragged in front of Tribunals.

As well as having these broad investigative powers, the Commission can bring proceedings for the criminal offences under the act under section 48.

Taken all together this means that the Commission can receive a complaint from anyone, investigate you with extensive coercive powers, and criminally prosecute you under the Act.